*but, just like Coleman v. Thompson, it's not really about federalism.

Friday, June 09, 2006

The Duke Lacrosse Case - Solved at last, thanks to Encyclopedia Brown! It was Bugs Meany!

Ok, I hate Collin Cowherd. Say what you want about Jim Rome, Jim Rome is generally offensive, so it doesn't really matter if he's right or wrong about something, you just know it's meaningless. Cowherd on the other hand isn't Jim Rome, he's a pale imitation of Rome who offends people by being a dipshit.

Today's topic, the report coming out yesterday that the second exotic dancer at the Duke Lacrosse party said the allegations were a "crock" and that she had spent the entire night with the first dancer.

Now I don't listen to the Herd with regularity, but the last time I did, Collin was going over the 400 reasons why it was a defense attorney's field day because of this same person contacting a New York publicist to see how she could "spin this her way". Today, he's going over why this destroys what's left of the case.

Basically, Cowherd's three premises besides 1) I'm a dipshit!.1) There's no DNA evidence. (Whee golly!)2) The dancer said that the allegations were a crock (at some point, the time frame on the report is not clear)3) You will distrust an exotic dancer because of what she does, as a matter of human nature.

I. All right, first, #1 is what is now gaining some academic tonnage in some circles as the "CSI Syndrome". Basically, because people are now aware of things like DNA testing, forensic sciences, and any number of absurdly preposterous technological advances they've seen on CSI and similar shows, they now EXPECT them and will make decisions based on them.This is seriously problematic, since 1) these tests aren't as dispositive as people treat them because a) they can be tampered with, b) even if they weren't tampered with, you'd never know as a juror who's unfamiliar with electrophosphoresis, so unless you're abandoning your role as a juror, you really owe them absolutely no deference, because you're letting experts make your decisions for you and offer what essentially become legal conclusions. 2) Lots of cases will not have this kind of evidence or would be ill-served by wasting efforts running ballistics tests when you have 40 people who know the defendant and know he was the one who committed the crime. 3) Processes for separating DNA when there's a mixture of it introduce another layer of complication. 4) By having jurors who expect this evidence, we now create a new floor for cases. Rape cases won't be tried unless there's some sort of DNA evidence, because prosecutors don't want to lose. This is analogous to the disastrous rules that Congress added to the federal rules of evidence over everyone in America's objection (aside from NOW) that permit introduction of otherwise inadmissible past conduct by the alleged sex offenders. As a result of this rule, now a prosecutor will be less willing to bring charges at all if there's not a record of past sex offenses.

II. The second premise is utterly preposterous. If she described it as a crock, great for her, but you can't place any weight in it, because, as Cowherd pointed out on the previous show, she wants to "spin this for her". Well, this case is going down the crapper, so of course she'd say it's a crock. If in fact she said it ages ago, well, what made it more credible than what she's saying now? This thing has been a media frenzy from the outset. If you determine that the other exotic dancer lacks credibility (which I believe she does), then you have but one conclusion to draw from what she's said...and that's not a damn thing. Because it's not like she's only credible in one direction (like say, in making statements against interest), because she doesn't have an interest. If the victim says they're a crock, then it's pretty likely to be true (not absolutely likely, since in sensitive cases (domestic violence, sexual abuse) there's a lot of mental gymnastics in a victim I don't pretend to understand, but more likely). If some other stripper who has lost all credibility says it...doesn't change a thing.

III. I agree, although one caller hit him with a good response to this...she's a stripper, they're a bunch of horny kids who hired a stripper. Gotta say, if I'm really choosing sides on that one, it's hard to say that they're much better, and it's easy to make the argument that they're emphatically worse, since they've likely got a lot more options in life than a girl who becomes a stripper. I'm not saying it's true, but it's possible.

Two specious arguments he made sickened me. 1) The Duke lacrosse team was involved in more community service than any other Duke men's athletic team, 2) the Duke lacrosse team had the highest graduation rate. Well, as for #1, look at them, they're a bunch of rich white fraternity boys. "Community Service" dressed up as community service carries no weight to me, because I've been to college and would gladly rid the world of their community service in exchange for more people like my friends. Secondly, again, everyone graduated...well, they're a bunch of rich white kids. Basketball players don't graduate because they're not there to go to school (or do because Duke lets them slide by); football players don't have a 100% graduation rate because they too aren't there to go to school -- though judging by Duke's record, you'd never know -- and there's 120 players on the team. And there's the race thing. Sorry, but minorities graduate at lower rates, and people who come from lower-class backgrounds do as well. Those are two groups you won't find overly represented on Duke's lacrosse team, if for no other reason than the fact that lacrosse isn't really offered at a whole lot of inner city/rural area high schools. But good luck finding a high school without basketball or football.

As a final note, I should say, I'm pretty sure some of those lacrosse kids are guilty of something. Would I vote to convict? I'd want to based on the way their attorney has been trying to use the media to win his case, but no, I wouldn't. There's a reasonable doubt as to whether these were the guys who were doing whatever happened. In a house with 30 people in it, it'd be almost impossible to conclude beyond a reasonable doubt that these three people in particular did the things they're alleged to have done. There was no way a rape charge would have stuck on these facts, and the prosecutor only ran with it to try and raise his name and then maintain it after it became a media frenzy. He ought to be disbarred for his own use of the media in leaking information and for putting the alleged rapists in the spotlight for as long as he has, because it eliminated any shot of a fair trial or a successful one.